On March 15, United States Secretary of State Mike Pompeo announced that International Criminal Court (ICC) investigators probing alleged crimes committed by the US or its allies - specifically Israel - would be barred from entering the US and could face “economic sanctions.”

ICC investigators “should not assume that [they] still have, or will get, a visa or that [they] will be permitted to enter the United States,” Pompeo said.

The announcement, which marked the first instance of US policy action taken to deter ICC investigators, came days before a United Nations Human Rights Council (UNHRC) independent commission of inquiry published a detailed report suggesting that Israel may be guilty of “crimes against humanity” and “war crimes” for its actions last year in the besieged coastal enclave of Gaza.

The report stated that Israel Defence Forces (IDF) shot and injured 6,000 and killed at least 183 civilians on the Israel-Gaza border - including Palestinian protesters, as well as children, journalists and people with disabilities - between March 30, 2018, when the “Great March of Return” protests began, and the end of the year.

The protests did “at times” turn “violent,” the report observed. This violence included “throwing rocks, cutting through the separation fence, and launching incendiary kites and balloons.” But “the use of lethal force in response was rarely necessary or proportionate.”

In all but two incidents, the report found reasonable grounds to conclude that Israeli soldiers’ use of lethal force was unlawful.

Omar Shakir, Human Rights Watch Director of Israel and Palestine, told Palestine Monitor that IDF personnel’s intentional use of lethal force was a result of orders from top Israeli officials.

“The [Israeli soldiers’] excessive force was a product of apparent policy set at the highest levels of the Israeli government,” Omar Shakir said. “In essence, these were orders that were flagrantly unlawful.”

“This wasn’t a case of a few bad apples who used excessive force,” Shakir said.

Israel’s internal investigations into alleged IDF crimes are “a whitewash,” Shakir added. “[A]lthough there have been some investigations,” both recently and in the more distant past, “these amount to nothing more than a public relations stunt to deflect international pressure toward international accountability mechanisms.”

“The Israeli army investigations […] consistently fail to provide any measure of real accountability for the serious violations that have taken place over the course of more than 50 years of occupation, including violations that pertain to excessive use of force.”

Israel announced earlier this month that it would investigate the killing of 11 Palestinians by Israeli soldiers at “Great March of Return” protests last year.

ICC jurisdiction in Israel and Palestine

In 2015, ICC Chief Prosecutor Fatou Bensouda opened a preliminary examination into events in Palestine, immediately after the state became a member of the court that April.

A preliminary examination involves deciding “whether the criteria have been met to merit […] a formal investigation on the basis of information that is either publicly available or submitted to her office,” explained Balkees Jarrah, the Senior Counsel to the International Justice Program at Human Rights Watch.

Prosecutor Bensouda “recently noted that her office had “significantly progressed its analysis” of the situation in Palestine and intends to complete” the examination as soon as possible, Jarrah said.

The ICC may be close to determining whether to launch a full inquest into events taking place in Palestine, including the IDF’s use of lethal force against “Great March of Return” protesters recently investigated by a UNHRC independent commission of inquiry.

Shakir said that the US’s recent threat to ICC staff has “no implications” for a potential future investigation into the situation in Palestine. “These sorts of threats aren’t going to change anything.”

Israel has previously challenged the court’s jurisdiction in Israel and Palestine. Palestinian National Authority Foreign Affairs Minister Riyad al-Maliki called on the ICC in May 2018 to investigate alleged IDF crimes against “Great March of Return” demonstrators.

Israel said in response that “[T]he ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the court and because the Palestinian Authority is not a state.”

A former US diplomat and attorney who spoke to Palestine Monitor under the condition of anonymity remarked on what they called a “continued misunderstanding, deliberate or otherwise,” in Israeli government and press writing about ICC jurisdiction in Israel and Palestine.

Because Palestine is a state member to the ICC, the court has jurisdiction over actions that occur in the territory, even actions committed by “nationals of non-state parties such as Israel,” the source said.

In November 2018, Israel Attorney General Avichai Mandelblit suggested he would consider launching a legal campaign against the ICC if it tried to investigate Israel.

According to The Jerusalem Post, Israel could avoid an ICC investigation if it demonstrated that it had already conducted a sufficient investigation of alleged IDF crimes in Palestine.

The US has also questioned the appropriateness of an ICC investigation into Israeli actions in Palestine. “[W]e oppose actions against Israel at the ICC,” said Edgar Vasquez, the US State Department Spokesperson on Near East Affairs. Such an investigation would be “counterproductive to the cause of peace.”

William Schabas, professor of international law at Middlesex University and author of over twenty books on international and human rights law, told the Palestine Monitorthat the ICC “will not intervene if the justice system of the State is doing its job […].”

The 2015 ICC probe into the situation in Palestine suggests that the ICC does not believe Israel has taken sufficiently seriously its internal investigations of potential crimes committed by state personnel.

“[T]o take the case of Palestine,” Schabas said, “I am not aware of any investigations or prosecutions that have been undertaken by the Israeli justice system.”

In 2009, the ICC received a request to investigate alleged crimes committed by the Israeli military in Gaza, during the IDF’s 2008 “Operation Cast Lead,” which lasted 22 days.

The Arab League Independent Fact Finding Committee on Gaza, chaired by international law expert John Dugard, “found considerable evidence” that Israel was guilty of “serious crimes” during its operation.

The request was rejected by the ICC prosecutor three years later, in April 2012, due to Palestine’s ambiguous statehood status as a UN General Assembly (UNGA) Observer state.

Later that year, in November, the UNGA voted to upgrade Palestine’s statehood status to non-Member Observer state, which was a necessary precondition to becoming a state party to the ICC.